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Friday, June 18, 2010

Oral arguments in Sharon Keller removal proceedings this morning

I'm headed up to the State Commission on Judicial Conduct this morning to hear oral arguments in Texas Court of Criminal Appeals Presiding Judge Sharon Keller's removal proceedings. Go here for all the filings in the case. See also AP's preview that's in several papers around the state this morning.

UPDATE: Back from the event, which lasted a little more than five hours en toto. I was somewhat surprised there wasn't a bigger crowd there. The room was perhaps a little more than 2/3 full at its height and any protesters remained outside. Media coverage was also lighter than I'd expected. The usual suspects among reporters were there, but just four TV cameras and no noticeable national news presence. The Commission will likely take a vote today, but the results won't be released publicly until sometime in the future. Keller, for her part, wore an emotionless mask throughout the hearing.

Keller's attorney Chip Babcock spent the majority of his time (80% by one commissioner's estimate) criticizing the Texas Defender Service and particularly attorney David Dow for mendacity and seeking to railroad Judge Keller out of office. He also criticized the Texas Civil Rights Project for relying on inaccurate media reports in drafting its complaint to the SCJC. These charges had taken an "almost unspeakable toll" on Keller "personally, professionally, and financially," he said, adding that all the allegations against her are a "pack of lies." The entire proceeding, he opined, was a "calculated strategy by some people to take a popularly elected judge and drive her from the bench." He also emphasized that Special Master David Berchelmann found Keller had violated no "unwritten rule," distinguishing such (as did the fact finder) from an unwritten, longstanding protocol at the CCA that Judge Keller said in a deposition she knew about and was considered mandatory.

Examiner Mike McKetta, by contrast, portrayed following that "mandatory protocol" as a "judicial duty" whose violation breached judicial canons. He observed that Judge Berchelmann, the fact finder, failed to issue findings on most of the questions about which the examiner asked him to rule, so McKetta asked the Commission to make those findings in his stead. Cleverly, in a power point presentation he proved up the main elements of the alleged offenses almost entirely from Judge Keller's own testimony - her admissions about what she knew and when she knew it, etc. - arguing she engaged in "gross carelessness." He also emphasized the Judge's defiant insistence that she'd do again today what she did back in 2007. Keller, he said, "persists in the belief that mandatory rules are not applicable to her." TDS' role is irrelevant, McKetta argued, since Judge Keller at the time she made the decision in Richard's case didn't know who was the defendant or who represented him. In perhaps the strongest statement in his presentation, McKetta said this is "not the right person or attitude" for the Presiding Judge on the state's highest criminal court.

Both attorneys were on their A games, but Babcock suffered in a couple of key moments from what they call "bad facts," particularly when he claimed Keller didn't really mean she would do the same thing again, that she isn't a "recidivist," but Justice Jan Patterson read back to him Keller's exact words from the testimony transcript to show he'd mischaracterized the Q&A and the examiner's interpretation was accurate.

Even so, it's exceedingly difficult to handicap results based on reactions from commissioners. I honestly can't begin to guess how they'll rule. One of the public, non-attorney members observed that there seemed to be a "shocking amount of dysfunction in the court," and a couple of others posed harsh questions - particularly a judge on the panel who called Babcock on the carpet for over-the-top comparisons in recent briefs of commission proceedings against Keller to Soviet show trials. Two other commissioners, though, seemed eager to cast aspersions on TDS and David Dow, and one of Judge Berchelmann's colleagues from San Antonio wondered if Keller's behavior must be overtly malicious to be "willful." Trying to interpret such questions to predict votes amounts to little more than tea leaf reading. I'd guess it won't be a unanimous vote, but I'm hard-pressed to say which way they'll go. And even if a majority of commissioners do hold against her, then the question becomes: What is the sanction?

26 comments:

In 1986, two months after being released from his second prison term, Richard killed Marguerite Lucille Dixon, 53, a nurse and mother of seven. Dixon had invited him in for a cold glass of water after Richard had knocked on her front door and asked if her van was for sale. Two of her children found her. She had been sexually assaulted before being killed, and her van and television were stolen.

Richard had a long legal history and a criminal record that evokes little sympathy. "By the time he was executed," Keller wrote in her response to the charges, "Richard had two trials, two direct appeals (including to the United States Supreme Court), two state habeas corpus proceedings and three federal habeas corpus hearings or motions."

Friends say Keller was bewildered by the fallout. In the days just after the event, she told the Austin American-Statesman that she was not informed why the attorneys wanted the clerk's office to stay open. "They did not tell us they had computer failure, and given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," the newspaper quoted Keller as saying.

Keller has turned to noted defense attorney Charles "Chip" Babcock... Babcock told the American-Statesman that he will question the "myth" of the computer problem and the last-minute actions of Richard's appellate lawyers.

One sobering what-if: even if the U.S. Supreme Court had accepted Richard's appeal, he most likely would have extended his life by only eight months.

During the punishment phase of his trial, the state presented evidence of Richard’s two prior convictions for burglary of a habitation. Evidence was also presented of an auto theft charge, committed shortly after the second burglary, but not prosecuted. Richard murdered Mrs. Dixon less than two months after he was released on mandatory supervision for his second burglary conviction.

PROCEDURAL HISTORY

October 29, 1986 -- A Harris County Grand Jury indicted Richard for the capital murder of Marguerite Dixon. September 4, 1987 -- A jury found Richard guilty of capital murder, and he was sentenced to death. September 16, 1992 -- The Texas Court of Criminal Appeals reversed conviction due to faulty jury instructions. May 15, 1995 -- Richard’s second trial began. June 15, 1995 -- A second jury found Richard guilty of capital murder, he was sentenced to death. June 18, 1997 -- The Texas Court of Criminal Appeals affirmed Richard’s conviction and sentence on direct appeal. April 3, 1998 -- Richard filed his first application for writ of habeas corpus with the state trial court. June 26, 1998 -- The U.S. Supreme Court denied Richard’s petition for writ of certiorari. February 7, 2001 -- The Texas Court of Criminal Appeals denied Richard’s state application for writ of habeas corpus. February 7, 2002 -- Richard filed a federal petition for writ of habeas corpus in a Houston federal district court. December 31, 2002 -- The Federal District Court denied Richard’s petition. June 20, 2003 -- Richard filed a successive state application for the writ of habeas corpus. June 27, 2003 -- The 5th U.S. Circuit Court of Appeals denied Richard permission to appeal his first federal petition. March 21, 2007 -- The Texas Court of Criminal Appeals denied Richard’s second state habeas corpus application. March 28, 2007 -- Richard filed a motion for authorization to file a successive federal habeas corpus petition. May 15, 2007 -- The 5th Circuit Court denied Richard’s motion for authorization to file a successive habeas petition. June 12, 2007 -- The trial court set Richard’s execution date for Tuesday, September 25, 2007.

"It means in this particular case, the system worked, it was thorough," Stephen Dixon, whose mother was killed in the attack, said after watching Richard die. "The person executed deserved what he got." Dixon said he wasn't too concerned with the delays. "I was told to expect such things," he said. "It's been a long 21 years."

Mr. Richard's criminal background or even the fact that he was guilty means that the court can change the rules. They're supposed to be better than the people they condemn. That means following the letter of the law every time. No exceptions.

Really, people, the end does not justify the means. It seems some of you approve of Keller's actions because Richard was such a scumbag. Judges take an oath to uphold the law for EVERYONE, not just approved defendants. I've practiced criminal law for 23 years now, and I routinely get calls from indignant parents who complain that when their child got arrested, he was treated "rudely" by the police or "treated like a criminal." These are the same parents who are lock'em up and throw away the key, until the system snares their kid, and they find out what its all about. Most people don't understand just how many actions are illegal, and how many are felonies, even apart from the famous oyster crimes. Texans need to wake up about what is being done in their name, and they need to do it soon.

Anon Keller supporter or is It Dudley Sharpe ? Your writing and tactics are very similar in your posts here and your drivel elsewhere . As R Shalkford said if your going resort to dirty tricks at least make it interesting. Hell I've seen convicts who ended up in Skyview or Jester 4 more rational than you !

What does Richards record have to do with what Keller did ? Nothing .If he was guilty that does not change what Keller did or make it right or acceptable if she can do that to a guilty man she can do it to a innocent man .

Before you say it wont be you Ask Timothy Coles family .about that one . They might disagree as Kerry Max Cook He might disagree .

No that it would bother you one bit if a innocent person is executed that in it self is grotesque and sick .You appear to find some very sick pleasure in executions .

Richards might not have been a poster child for reforming a corrupt system and unseating a very biased judge . But they are two separate issues .

Actually what Keller said in a interview about Roy Criner was far more distributing when asked how he could prove his innocence.

How can Roy Criner establish his innocence? I don't know. . .

So it was a proper conviction even if it leaves open the question of his actual innocence?

[Roy Criner] did not meet his burden to prove that he is actually innocent of this offense. At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. When witnesses testify, and when jurors return a verdict, they need to know that they can't come back later and change their minds. . . DNA evidence in this case did not prove that he didn't commit the offense. That's the standard we use, and he didn't prove it. At best, he made some people think that he might be innocent. But he didn't prove it.

These are her words

Keller does not want to give any one a new trail or any choice if they can show the might be guilty . She is sitting a impossible standard. And not making a logical argument . If they can prove they are innocent there is not a need for a new trail a judge can dismiss the charges She knows it or should .

This makes that clear. How the hell can you prove you are possible innocent if all you get is one chance and Sharon Keller is the chief Justice ? Who can do that? Is justice served if people are in prison wrongly ? Does that make us safer ? Who keeps us safe from the likes of Sharon Keller

Doesn't the DNA evidence raise new questions? In Texas, the legal test to get relief after your conviction is final-- and after your direct appeal is through--is: "Has he unquestionably established that he is innocent?" That's what the appellate court looks at. "Has he established clear and convincing evidence that no rational juror would have found him guilty?" I think the record shows that he has not. . .

That is far more troubling than her infamous We close at Five statement Keller should be removed she is a embarrassment to Texas , The entire criminal justice system. n She has to be the most unethical and biased judge in history . How the hell do you expect the public to respect the laws when those who uphold them act as if they get to apply them as the wish . The Constitution is not a collection of suggestions and technicalities it is the law of the land in all 50 states.

Texas will be better off with Keller gone and incarcerated in a TDCJ unit for her felonies if found guilty . To see her in white would priceless .

I find it interesting that Keller and her supporters do not like the rules and laws they want every one else to follow . That is arrogant hypocrisy

No one said Richard was innocent, but he might have had a viable Atkins claim. The doc who evaluated him for mental retardation is the same guy who got in trouble for inflating IQ scores in death penalty cases. See here.

I'd like to see Keller take it on the chin for the whole asset disclosure thing. A normal citizen certainly would, and I believe judges, d.a.s and leos ought to be held to an even higher standard of conduct than joe shmoe on the corner. Everything about this whole Richards thing is fishy, it sure seems to me that this was a machined process to aid prosecutors. Something we see only too often in Texas. And before some jackass tries the usual 'aha! you think he was innocent! you support rape and murder!' thing, I don't think he was innocent. But I DO think he (and everyone else) ought to receive a fair trial.

Annie to be able to give you a good answer, I would have to know his conviction ,sentence time served, disciplinary record , what unit he was on and is now on , His job assignment to begin with . They do parole trusties it is hard to know really there is a impression that I cannot prove one way or another that certain trusties are not paroled .I knew of SSIs who got paroled as there was endless supply so to speak they could always find some one from another unit who annoyed rank I was on what is is often considerd the worse unit . I you can give me a anonymous idea of the above I might be able to at least give you an idea

It is almost impossible to predict a vote by BPP. Any one who claimed other wise is flat out lying .I tell pole to hope for the best but prepare for the worse . It could be a whole topic for Grits too BBP and the many parole service consultant and lawyers that have cropped up due to the secrecy and power of BPP .

I wish I could do more for you I have helped others dealing with TDCJ and continue to do so .

I know that the one units seem to be releasing less on parole possibly because there are less women to replace them TDCJ need s trusties in order to function . Most people do not know that .

Richard definitely had an Atkins claim . I saw the guy hew was not any where near normal IQ But Keller's actions are what got her into the situation she is in . Not a executed man . Most normal humans find her behavior repulsive and morbid . She could have had the human decency to hear his appeal and stay the execution . If he was executed later so be it if he was found to be mentally retarded commute him to life and send him to a unit that can handle low IQ convicts . No one said he was innocent .Given that the state relied on a psychiatrist who has been found to have scored test to favor the prosecution . If They very biased CCA commuted Danial Plata's sentence to life and he was sent ot the appropriate unit There is not a doubt in my mind that Denkowski was fabricating testimony and committing perjury and the prosecution suborned it . Every case that SOB testified in should be reopened .

People are saying that he should have been given a fair chance and trail he never was in his trail or appeals In the US if you are a suspect you are guilty as far as the criminal justice system and media are concerned . That is a police state

How the hell does a person show the state is wrong , violated their rights fabricated testimony and hid evidence and so on if they are not allowed to do so .That is not justice . If you want revenge and as long as some one is convicted why not just come out and say that .That is exactly what you and Keller are saying .To hell with any claims, procedure and finality come first reality and honesty integrity and justice are just quaint notions , the Constitution is just a piece of paper. The bill or rights apply only to those who fit in with your racist hate filed world .

Anonymous asshole . You either have a serious cognitive deficit if you cannot grasp the context of the articles and what it is about , or you are simply makes shit up to be a huge asshole . You also have a very unhealthy obsession with David Dow it is not advisable to make attorneys mad at you they have a way making your pathetic existence hell .R Shakleford is right no one supports rape and murder you asshole . I just want the system to be fair it is not and don't even try to say it is .

If you want to execute humans because you enjoy executions you are very sick individual You are worse than any one on death row . You are saying you want to execute and you could careless about anything guilt or innocent and mitigating factors as long as some one is executed you are happy that asshole is far more evil than any one on death row You certainly cannot claim the moral high ground. You never had that to begin with .

1:44, that comment's been up more than a day, but you're the only one who seems to be wringing your hands here.

And to 1:41 (presumably the same troll): The examiner cited specific evidence to argue Keller deserves the axe. You may not like Dow because you disagree with his political position on the death penalty, but what exactly do you think he's done to merit disbarment? Cite your authority and be specific: Keller's accusers are.

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